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Tanner De Witt Partners Secured Return of Child in Complex Cross-Border Abduction Case Across Hague and Non-Hague Signatories
13May2025In a complex cross-border child abduction case involving multiple jurisdictions, Tanner De Witt partners Adrian Au and Joanne Brown successfully acted for the father to secure the return of his child to Mainland China. The case involved serious legal issues arising from the Court’s treatment of ‘habitual residence’. This case also highlights the distinctions between two different legal regimes governing the return of a child between Hague signatories and between a Hague signatory and a non-signatory jurisdiction.
This article highlights the Court’s different considerations between these two different legal regimes.
The Hague Abduction Convention
The goal of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is to ensure the swift and summary return of children who have been wrongfully removed or retained by a parent from their country of habitual residence (i.e. home country). Upon returning, the courts within the child’s home country can then determine issues of custody, care and control or other welfare issues.
If the home country is a Hage Convention signatory and the child is brought to Hong Kong, a parent can make an application to the Hong Kong Courts under the Hague Convention for the return of a child to their country of habitual residence. The Hauge Convention regime provides a formulaic approach towards considering whether the child should be returned to the home country.
1) Habitual Residence
First, to engage the Hague Convention, although Hong Kong is a Hague Convention signatory, the child’s home country must also be a Hague Convention signatory. Further, the child must be a habitual resident of their home country. Habitual residence is a factual question, to be determined by how integrated a child is into a country. The Court will consider a series of factors, including the child’s social and family environment, the duration of their stay, and their living and school conditions compared to other jurisdictions which the child may be connected to. The Court may also consider the child’s personal views and wishes. Parental intent regarding relocation can also influence this assessment, but a child does not automatically share the habitual residence of their parents.
In JEK V. LCYP | [2015] HKCFI 858 | HKLII, the wife, a Hong Kong-born Chinese, and the husband, an American from Brooklyn, married in 1997 and initially lived in New Jersey. The wife moved to Hong Kong with their two children in July 2013, and filed for divorce there in April 2014.
The Court of First Instance defined habitual residence as a factual inquiry focused on stability. It noted that the children’s habitual residence in Hong Kong was supported by the parties’ decision to purchase a property in Hong Kong in 2013 and the wife’s decision to take out a two year-lease in 2014 after discovering the husband’s affair. The children had also integrated into Hong Kong through schooling and social activities for nearly two years. Ultimately, the court concluded that their habitual residence was now in Hong Kong rather than New Jersey. The lack of joint parental intent to permanently reside in Hong Kong was not deemed decisive.
2) Infringement of Rights of Custody
Further, the removing parent must have breached the custody rights held by the other parent, as defined by the applicable laws of the child’s habitual residence.
3) Agreement and Acquiescence
The Court will also consider any agreements between the parents about where the child should live. If there is no agreement, the Court will evaluate whether one parent has implicitly accepted the other’s decision to move the child to another country. The Court does not have to order the child’s return if the parents have shown, through agreements or their actions, an intention for the child to live elsewhere.
4) Risk to child
Under the Hague Convention, the court can decide not to return the child to their habitual residence if to do so would expose them to a grave risk of physical or psychological harm to the child or would place them in an intolerable situation. The court must assess whether the child’s home country has sufficient infrastructure, including a strong legal system, competent authorities, and sufficient public resources to ensure the child’s protection and wellbeing. This high threshold is often challenging to meet.
5) Child’s wishes
Sometimes, the Court may also hear and consider the Child’s wishes if they are of sufficient age or maturity. On such occasions, professional reports from social workers or professional experts maybe called for to obtain a child’s views and for example, to consider whether the views expressed by the child are genuinely their own.
Non-Hague Convention Cases
When a parent seeks to return the child to a non-Hague signatory, the specialised rules of the Hague Convention do not apply.
The Court can still order the child be returned to a non-Hague signatory country through Wardship proceedings commenced at the High Court. When considering these applications, the Court adopts a holistic approach with regard to the welfare of the child as the paramount consideration. It does not rely on the formulaic mechanism employed in Hague Convention cases.
Hong Kong law does not assume what is best for a child. Instead, the Court evaluates various factors individually when deciding whether to return the child. Key considerations include the child’s wishes, assessed by their maturity, and their physical, emotional, and educational needs. The Court also examines the ability of the adults responsible for the child’s care in meeting those needs.
J v Q
In the recent case of J V. Q AND ANOTHER | [2025] HKCFI 632 | HKLII, the proceedings began in Hong Kong following the mother unilaterally and wrongfully abducting the child from Shanghai to Hong Kong (i.e. between a non-Hague signatory and a Hague signatory). While in Hong Kong, the mother confirmed that she consented to the father bringing the child from Japan to Shanghai but alleged that the father unlawfully retained the child in Shanghai. She therefore claimed that she abducted the child to Hong Kong to invoke the Hong Kong Court’s Hague jurisdiction to return the child to Japan (i.e. between 2 Hague signatories). As a result, the Hong Kong Court had to grappled with Hague and non-Hague jurisdiction considerations within the same matter – arguably the first case in Hong Kong of such complexity and across multiple jurisdictions (i.e. Hong Kong, Japan, and the Mainland China)
The case was further complicated by ongoing custody proceedings in the PRC and allegations of parental alienation, which led the court to call for a report from a child psychiatrist. Expert evidence was presented on the custodial rights under both PRC and Japanese law.
The court ultimately determined that the child’s habitual residence was in Shanghai, where he had lived for the majority of his life with his sister and frequently returned during his time studying in Japan. The arrangements in Japan were deemed temporary, with both parents having agreed on the child’s eventual return to Shanghai. As a result, the Court dismissed the mother’s application under the Hague Convention.
In relation to the father’s application for non-Hauge return under the wardship proceedings, applying the welfare principle, the Court found that returning to Shanghai was in the child’s best interests, given his cultural integration and familial ties there, in contrast to his primarily academic stay in Japan.
Ultimately, the father secured the child’s return to the Mainland China. Tanner De Witt partners Joanne Brown and Adrian Au acted for the father.
Concluding Remarks
The Hong Kong Court may order a child be returned to his home country if they are wrongfully removed from the home country or have been wrongfully retained in the foreign country. Depending on whether the home country is a Hague Convention signatory, the legal basis and factors to be considered in such return applications may vary significantly.
If it is a Hague Convention signatory, the Court will apply a statutory framework and a more a formulaic approach; If it is a non-Hague Convention signatory, the Court adopts a holistic approach that focuses on assessing what is in the child’s best interests.
This distinction is crucial in practice, as it influences the speed and nature of legal proceedings. The formulaic approach of the Hague Convention can lead to quicker resolutions, while the holistic approach allows the Court to take more factors into consideration and resulting in a more nuanced evaluation based on the best interests of the child.
Joanne Brown and Adrian Au
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.